Chemical Safety Reform: A Tale of Two Bills

Senator Frank Lautenberg left us with two bills aimed at updating and improving the regulation and safety of the chemicals we use and live with. Which one’s better?

The five-term Democrat from New Jersey died on Monday. Ever since 2005, when he introduced his Child, Worker and Consumer-Safe Chemicals Act, Sen. Lautenberg was consumed with trying to reform the Toxic Substances Control Act  (a k a TSCA and pronounced “Tosca”). The law was passed in 1976 and has remained largely unchanged* in the roughly 37 years since. It was designed to provide the Environmental Protection Agency with the authority

”to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards.”

But almost everyone agrees that it’s deeply flawed and in need of reform. (See calls to update TSCA from the American Chemistry Council [pdf], EPA, the American Academy of Pediatrics, the National Institute of Environmental Health Sciences, and the U.S. Office of Technology Assessment [pdf], to list but a few.)

Sen. Lautenberg died with his efforts at TSCA reform unfulfilled, but he did leave us with a kind of TSCA legacy in the form of two active bills intended to provide that much needed update:

  • The Safe Chemicals Act (S.696) — initially proposed by Lautenberg in 2011 (based on his 2005 efforts) and reintroduced in this legislative session on April 10, 2013. Upon its reintroduction, the bill received strong support from the environmental community but not from the chemical industry (see here, here and here) and has never received the bipartisan support (or even the strong Democratic support — tho there are 28 cosponsors) needed for passage.
  • The Chemical Safety Improvement Act (S.1009), introduced on May 22, 2013 by a bipartisan group of 20 senators.

To state the obvious, the bill with the bipartisan sponsorship has a much greater chance of passage than the Democrat-only sponsored one.

But by its very bipartisan nature, the Chemical Safety Improvement Act represents a compromise between the desires of the environmental community and industry. And yet, despite its compromises, some environmental groups have hailed it as a breakthrough bill that represents a major step forward, and a step that, unlike the Safe Chemicals Act, Congress might actually take. See Environmental Defense Fund’s take here and expanded on here and the Safer Chemicals, Health Families coalition’s initial take here (whichch also provides a nice roundup of opinions from various groups and interested parties) and commendations by two former toxics officials.

Others have opined that because the compromises in the Chemical Safety Improvement Act are too great, it will not accomplish the reforms to TSCA that are sorely needed. See these critiques by the Natural Resources Defense Council, the Environmental Working Group and the Breast Cancer Fund. (See also EWG’s comparison [pdf] between the two bills.)

So which is it? To help you figure it out, here’s a brief assessment of what I believe to be the most critical differences in the two bills. In developing this assessment, I have relied on some (what I believe to be) objective summaries of the bills by the National Law Forum, EHS Strategies, and GeekintheBreeze.Wordpress.com blogger mythbri (sections 1-3 here and section 4 here) as well as, of course, the bills themselves (here [pdf] and here [pdf]), all 383 (combined) pages of them.

Safety Standard

Many argue that among TSCA’s many flaws, its largest is the standard of safety it prescribes to EPA in deciding whether a chemical should — actually it would be more accurate to say, can — be regulated. The standard has been described as treating all chemicals as “being innocent until proven guilty.” In other words, to regulate a chemical, EPA must develop affirmative proof that a chemical is harmful.

A more precautionary approach (see my discussion of the precautionary principle) — one that has been adopted in the European Union through its REACH program (short for Registration, Evaluation, Authorisation and Restriction of Chemical substances) and one that environmental groups tend to favor — would require the chemical industry to provide evidence that a chemical is safe before it can be used.

The specific language in TSCA gives “EPA the authority to protect against unreasonable risk of injury to health or the environment from chemical substances.” (My emphasis.)

The use of the word “unreasonable” has proven to be especially burdensome because the courts have interpreted that to mean that EPA must carry out a cost-benefit analysis and an assessment of alternatives before going forward with a regulation. It’s been so burdensome, in fact, that EPA has been unable to move forward on a vast array of chemicals that are clearly harmful (see also here [pdf] and here). The agency was even unsuccessful in promulgating regulations for asbestos except for very limited uses such as in public school buildings.** (Read more on asbestos here and here [pdf] and also in the end notes.)

Enter the Chemical Safety Act

Lautenberg’s initial forays into TSCA reform (including his 2005 bill that never made it out of committee) attempted to take the burden of proof off EPA and place it on the chemical companies by imposing a safety standard [pdf] that “ensures that there is a reasonable certainty that no harm will be caused to human health or the environment from the aggregate exposure to the chemical.”

This would be a huge change. No longer would a chemical be assumed to be benign and no longer would the EPA be required to establish unreasonable harm. Moreover, the harm is not just from exposure to a single product but in the aggregate.

And Then a Retreat With the Bipartisan Bill

The safety standard language in the bipartisan compromise bill “ensures that no unreasonable risk of harm to human health or the environment will result from exposure to a chemical substance.” With the “unreasonable risk” clause this seems pretty similar to the TSCA language, don’t you think?

Now, some argue that there are significant differences between TSCA and the proposed Lautenberg-Vitter legislation. For example, the safety standard language in the CSIA states the intention in an active voice:

“no … harm … will result,”

while the TSCA language is more passive, giving EPA:

“the authority … to protect.”

Some argue that this will provide greater regulatory authority to EPA.

And while both bills use the phrase “unreasonable risk,” there is language in the CSIA that states that “unreasonable” should not be interpreted to mean that a cost-benefit analysis is needed. But, as the Environmental Working Group [pdf] and EDF [pdf] have pointed out, that cost-benefit will still be required by the courts.

(Another truly disturbing part of the Chemical Safety Improvement Act is its pre-emption over state and regional laws. But that’s be a topic for another day.)

The bottom line is that the bipartisan Senate bill that aims to reform TSCA treats, much as the very act it wants to reform does, all chemicals as being benign and places the burden on EPA to establish harm. If you believe that TSCA’s most fundamental and serious flaw is allowing untested chemicals into the marketplace and by extension into the water you drink and the air you breathe, then you’ve got to be disappointed with the  Chemical Safety Improvement Act.

_____________

End Notes

* While never modernized, TSCA has been amended thrice by Congress since its 1976 passage:

  • the Asbestos Hazard Emergency Response Act (now Title II of TSCA), enacted in 1986, which establishes an “asbestos abatement program in schools” and bans some other uses of asbestos but part of which was struck down by the courts in 1991;
  • a radon abatement program, passed in 1988, now Title III of TSCA; and
  • the 1992 Lead-Based Paint Exposure Reduction Act, Title IV of TSCA.

** Banned uses of asbestos include: corrugated paper, rollboard, commercial paper, specialty paper, flooring felt.

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